Bombay High Court
Narooddin Jafferbhai Nathani & 12 ... vs State Of Mah Thru Its Sec. Mumbai & ... on 7 April, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No.4399 of 2003
1. Jafferbhai s/o Jamalbhai Nathani
since deceased through his legal representatives -
(a) Narooddin Jafferbhai Nathani,
aged abut 68 years, son
Resident of Owners Pride House no. 4,
Satya Colony, Near Vikas Colony,
Trambak Road, Nashik 422007.
(b) Amiruddin Jafferbhai Nathani,
Aged major, son resident of
Khoja Colony, Ram Nagar,
Chabndrapur.
(c) Sau. Meherunnissa Sultanali Marchand,
aged about 65 years, daughter
resident of Flat No. 15, Belmont Park,
Ganesh Khind Road, Pune-411 007
2. Ramrao Laxminarayan Dudiwar,
Resident of Sironcha, Dist. Gadchiroli.
3. Margoni Satyanarayan,
Resident of Sironcha,
District Gadchiroli.
4. Shankarrao Bezalwar, since deceased
through legal representatives -
(a) Lilalbai Buggewar,
(b) Ushatai Kasatwar
(c) Smt. Rekha Masturwar
(d) Smt. Savita Kuldiwar
(e) Jyotsna Neral
(f) Kavita Mankawar
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through constituted attorney
mt. Jyotsna w/o Sudhir Neral "Manohar"
Baji Prabhu Chowk, Near Church,
Ram Mandir, Hill Top Road, Nagpur. ... Petitioners.
-Versus.-
1. State of Maharashtra through
its Secretary, Prohibition &
Excise Department, Mantralaya,
Mumbai -32.
2. The Commissioner of State Excise,
Maharashtra State, Old Customs House,
Fort, Mumbai.
3. State of Maharashtra through its
Secretary, Home Department,
Mantralaya, Mumbai -32.
4. The Collector & District Magistrate,
Gadchiroli. ... ... Respondents.
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Mr. Prashant Dharaskar h/f Mr. Parchure, counsel for petitioners.
Mr. A.V.Palshikar, AGP for respondents.
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CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
DATE : 7th April, 2016.
ORAL JUDGMENT ( Per B. P. Dharmadhikari, J.)
Heard advocate Prashant Dharaskar, holding for advocate
Parchure and learned AGP. Advocate Dharaskar invites attention to the
assurance contained in order dated 20.7.1999 that request for transferring
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their licence shops from Gadchiroli district to any other district in Vidarbha
(except Wardha) if made by persons like present petitioners shall be
considered. He states that on this assurance Gadchiroli district was declared
dry district. However, vide impugned communications dated 12.6.2003 and
7.8.2003 state government has declared a policy decision not to permit such
transfer.
2. He points out a chart to demonstrate that in similar situation
licence shops at Wardha were allowed to be shifted elsewhere. He is also
seeking time to place on record subsequent policy decision whereby while
implementing the policy in Chandrapur, the licence holders there were
permitted to shift the shops elsewhere. The respondent state initially made a
declaration in relation to Gadchiroli also that it would look into such
representations but thereafter took a decision to the contrary and breached
its own promise. The discrimination to which petitioner is subjected to is
also highlighted by him by arguing that if at Wardha or Chandrapur transfer
can be allowed, why the same cannot be permitted at Gadchiroli.
3. Learned AGP has answered the contentions as raised. He is relying
upon the judgment of Division Bench of this court delivered at Nagpur in
W.P. No. 1360/2015 with W.P. Nos. 1366/2015, 1347/2015 and
1419/2015. He submits that trade in Alcohol is viewed as pernicious and
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obnoxious even by Hon'ble Apex Court and the provisions in chapter III like
right to trade or Article 14 are found to be not attracted.
4. Mr. Dharaskar sought an adjournment to move appropriate
application for amendment of writ petition to incorporate challenge based
upon policy decision of government pertaining to Wardha and Chandrapur.
5. In writ petition as presented, only prayer is to quash and set aside
the government decision not permitting transfer and to permit petitioners to
shift their licences out of Gadchiroli district.
6. Perusal of order dated 27.3.1993 issued by Collector Gadchiroli
shows that it is under provisions of Section 56(1)(A) of Bombay Prohibition
Act, 1949 canceling licences SL-11 of J.J. Nathani. We have not noticed such
order in relation to shop of other petitioner. The same has not been produced
before us.
7. The State government has while imposing ban at Wardha taken a
policy decision and permitted transfer of such licenses out of Wardha on
terms and conditions as mentioned therein.
8. Perusal of impugned communication reveals that state
government has on 12.6.2003 taken decision regarding shifting of cancelled
licenses from Gadchiroli district to any other district. It mentions W.P. No.
2416/2001 and 2226/2001 filed by Jafarbhai Jamalbhai Nathani and
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Khushal Atmaram Meshram respectively. The State Government has pointed
out that high court had asked it to take decision on request made by these
persons and after considering relevant factors it was decided not to permit
them to shift to any other district. The said decision of state government is
communicated to petitioner no. 1 vide letter dated 7.8.2003 by Collector,
Gadchiroli.
9. Thus, merely because at Wardha or Chandrapur while imposing
ban, a particular policy decision was taken, that decision cannot ipso facto be
made applicable to Gadchiroli district.
10. This court has already found that challenge based on Article 14 of
Constitution of India is not available, when state government proceeds to
implement obligation cast upon it by Article 47 of the Constitution of India.
11. In this situation, in the backdrop of contentions raised by
petitioners, we find no case made out warranting interference. Writ petition
is, therefore, rejected. Rule discharged. No costs.
JUDGE JUDGE
Hirekhan
